[34.1] This chapter addresses the extent to which the courts are prepared to read legislation as if the statutory text is modified in order to address an apparent drafting error. This is known as ‘remedial construction’. The doctrine of the separation of powers and the notion of legislative intent are central to remedial constructions. Drafting deficiencies can be viewed on a spectrum. At one end of the spectrum are obvious and simple printing or grammatical errors, which courts will readily read as corrected. Further along the spectrum are less straightforward instances of drafting errors where determining the line between interpretation and legislation may involve the application of particular guiding factors. In these instances courts may be willing to read legislation as if it contained additional words, substituted words or omitted words.

[30.1] This chapter examines the use of binding and persuasive precedent in the interpretative task. Precedent here refers broadly to prior judicial decisions of courts on the meaning of particular legislative text, rather than precedent on the common law principles of statutory interpretation.The doctrine of precedent generally applies to statutory interpretation cases in the same way as it applies to common law cases. But there are some special considerations due to fundamental interpretative principles.

[14.1] Sources of doubt are socio-legal phenomena that are the root causes of interpretative doubt.

[13.1] This chapter looks at the structure of Acts and their various components. An Act begins life as a Bill and its components flow through into the Act when passed. Certain components of a Bill are mandated by legislation1 or parliamentary standing orders.2 Others reflect the choices made by a jurisdiction about Act structure.

[19.1] Statutes often operate for many years. Yet the passage of time may mean that a statute is operating in circumstances quite different to the circumstances in which it was enacted. The question is how these changes affect the interpretation of the statute. The principle of interpretation that a statute is to be interpreted as ‘always speaking’ is typically invoked in this context. It provides that, where appropriate, a word or phrase in a statute is to be construed as speaking continuously in the present. This means that it may be possible for statutory text to apply to a state of affairs or a legal environment that was not known or understood at the time the statute was enacted. The potential to construe statutory text as ‘always speaking’ is a matter of construction. In this context courts have emphasised the distinction between the connotation, or ‘essential’ meaning, of text, which does not change, and its denotation, or application, which may. If the essential meaning can be expressed at a sufficiently broad level, consistent with statutory purpose, then it may apply to a class of things or a state of affairs that exists at the time of interpretation, but not at the time of enactment.

[29.1] ‘The statute book’ is a term commonly used to describe all Acts of Parliament in existence in a particular jurisdiction, whether or not commenced to operate.1 A law on the statute book may be an aid to interpretation. The same principle applies to the use of legislation of other jurisdictions; this includes other states and territories as well as other countries. But the statute book for a jurisdiction and the legislation of other jurisdictions (the wider legislative context) are not necessarily relevant, even if the same or a similar word is used.

[42.1] A statutory offence may contain, expressly or by implication, a proposition as to a state of mind. At common law the state of mind that an offence contains is known as ‘mens rea’.

[27.1] A particular construction of a statutory provision may be tested by reference to its consequences. The principle directs attention to the likely operation of a statute if that construction were preferred. In practice, cases raising the principle are more concerned with adverse consequences.

[37.1] The effect of non-compliance with a statutory requirement is an issue that arises in a variety of ways.

[9.1] As well as a body of legal doctrine, statutory interpretation is an area of skill and technique. To a degree these techniques can be described and modelled. With reference to actual cases, this chapter models techniques for undertaking legal analysis of an Act, identifying interpretative clues or indications of meaning (‘interpretative factors’), formulating alternative constructions (rival contentions as to the meaning of the words in question), evaluating interpretative arguments, determining the preferable construction, and presenting a legal opinion and reasons for judgment.

Context – a fundamental notion in statutory interpretation (chapter 7) – includes the wider context. Part V deals with a major component of this wider context – the legislative history of an Act. In this book the term legislative history is used to refer broadly to the materials, law and circumstances that reflect the genesis and historical development of an Act or a provision of an Act up to the version being interpreted.

[33.1] Put simply, inadmissible considerations are considerations of a type that ought not be taken into account in statutory interpretation. The reason why such considerations ought not be given any weight is that they do not point to the legislative intention.

[38.1] Statutory reasonableness refers to the use in legislation of the ‘reasonableness’ standard in its various forms. The concept of statutory reasonableness may be profitably examined, taking in its general characteristics and its special interpretative aspects. The importance of examining it is underlined by the fact that, for a number of compelling reasons, it is widely used in statute law.

[7.1] The aims of this chapter are to state, elaborate on and illustrate the context principle: the duty to have regard to the context of the text whose meaning is in issue. It is not the purpose of this chapter to examine each of the individual contextual aids. Later Parts (Parts IV–VIII) elaborate on the contextual aids that may be considered.

Part I reviews the underpinnings of statutory interpretation from three perspectives. The first is functional: the basic characteristics of statutory interpretation. The second perspective is historical: the modern development of the law of statutory interpretation. The third perspective is constitutional: the key constitutional concepts relevant to statutory interpretation. These perspectives contribute to understanding the fundamental interpretative principles in Part II and many other principles covered in this book (such as the use of legislative history in Part IV).

[12.1] An Act is passed when the final stage of the enactment process is completed. It may not come into operation for some time after it is passed. It may come into operation wholly at the one time or in stages over a period.